Today's "Tenthers" seem to be yearning for the good old Articles of Confederation, not this newfangled left-wing Madison thing

Not long before he was sworn in as a new member of the Senate, Tea Party favorite Mike Lee gave a speech in Draper, Utah, about the horrors of federal legislation in the Progressive Era.

Congress decided it wanted to prohibit [child labor], so it passed a law--no more child labor. The Supreme Court heard a challenge to that and the Supreme Court decided a case in 1918 calledHammer v. Dagenhart.In that case, the Supreme Court acknowledged something very interesting -- that, as reprehensible as child labor is, and as much as it ought to be abandoned -- that's something that has to be done by state legislators, not by Members of Congress. [...]

This may sound harsh, but it was designed to be that way. It was designed to be a little bit harsh. Not because we like harshness for the sake of harshness, but because we like a clean division of power, so that everybody understands whose job it is to regulate what.

Now, we got rid of child labor, notwithstanding this case. So the entire world did not implode as a result of that ruling.

Lee did not mention a couple of things. The first is that the law did not say "no more child labor." What the Keating-Owen Child Labor Act of 1916 said was in fact very respectful of the Constitution's grant to the Congress of the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." It forbade businesses to "ship or deliver for shipment in interstate or foreign commerce, any article or commodity" produced with child labor. And the Keating-Owen Act was not the product of a spoiled Congress whimsically banning child labor; it was the culmination of decades of sustained, informed national demand by the people -- sovereigns in our system -- that American commerce be cleansed of this barbaric relic of the past.

The best way to read the Tenth Amendment we actually have is that its words mean what they say, and not what they don't say. The Constitution grants Congress all the implied powers "necessary and proper" to using its enumerated powers.

Second, the only reason "we got rid of child labor, notwithstanding this case," was that the Supreme Court in 1938 -- after two needless decades of what Justice Holmes correctly called "ruined lives" -- overruledHammer v. Dagenhart and held that the federal government can forbid child labor as part of its power over commerce. Had it not done so, it's pretty clear that children in (you fill in the state) would be suffocating in mines today.

The third thing Lee did not mention is that nothing in the Constitution anywhere says that regulation of shipment of child-produced goods in interstate commerce "has to be done by state legislators, not by Members of Congress." In fact, he cannot point to anything in the text of the Constitution that was "was designed to be a little bit harsh."

The harshness is in his head.

Lee is a "Tenther," part of a new extremist movement that seeks to brand all major federal legislation -- not only labor regulation, but environmental laws, gun control laws, and Social Security and Medicare -- as violations of the "rights" of states as supposedly spelled out in the Tenth Amendment. Senator Jim DeMint last year phrased it this way: "the Tenth Amendment says powers not explicitly given to the federal government in the Constitution go to the states or to the people."

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Notice that DeMint, like a lot of "Tenthers," managed to sneak a word in that the Framers didn't write.

The word is "explicitly." Nothing in the Tenth Amendment says that powers -- such as power to regulate child labor as part of commerce, for example -- must be explicitly or expressly given to the federal government. Compare the language of the Articles of Confederation:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

When the First Congress adapted this repealed provision as an amendment to the new Constitution, a few important words didn't make the cut. The Articles were familiar to every member of the First Congress. It seems hard to believe that they meant to copy the language but accidentally left some of it out.

What does the omission of the word "expressly" suggest?

Since the Amendment was adopted, constitutional thinkers have concluded that the express powers delegated to the federal government by the Constitution necessarily carry with them the "implied" powers needed to carry them out.

If "implied power" sounds like tricky lawyer talk, ask yourself the following question: Is the American flag unconstitutional? The Constitution doesn't make any reference to a national flag. By the "express" argument, states and only states would retain what we might call "the flag power." The U.S. Army would have to march under a congeries of the fifty state flags, depending on the origin of each unit. That would be cumbersome, confusing, and dangerous -- and more to the point, stupid. Congress can "raise and support armies." A country that has an explicit power to raise an army has the implied power to designate a flag. Nobody seriously reads a Constitution any other way.

Conservatives don't when it's a power they want the government to have. And James Madison didn't either. Madison was the sponsor of the proposed Bill of Rights in Congress. When Representative Thomas Tucker of South Carolina moved to insert the word "expressly" into what became the Tenth Amendment, Madison (in an eyewitness account reprinted in The Complete Bill of Rights, edited by Neil Cogan)"[o]bjected to this amendment, because it was impossible to confine a government to the exercise of express powers, there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae. He [Madison] remembered the word 'expressly' had been moved in the convention of Virginia, by the opponents to the ratification, and after full and fair discussion was given up by them, and the system allowed to retain its present form." Tucker's amendment was voted down.

Chief Justice John Marshall, who had been a delegate to the Virginia Ratifying Convention in 1788 (making him, though you'd never know this from reading far-right "constitutionalist" writing, a Founder), read the Tenth Amendment the same way. In McCulloch v. Maryland, Marshall rejected the argument that because Congress has no express power to create a bank, it is forbidden to do so. He noted the absence of "expressly" in the Tenth Amendment: "The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments."

"Constitutionalists" who try to smuggle the word back into the Constitution aren't being faithful to the document; they are rewriting it. (They also try to smuggle the ideas of state "rights" and state "sovereignty" back in. In fact, many proud "constitutionalists" these days seem to me to bear primary allegiance to the Articles of Confederation, not this new-fangled Madison thing.)

The best way to read the Tenth Amendment we actually have is that its words mean what they say, and not what they don't say. The Constitution grants Congress all the implied powers "necessary and proper" to using its enumerated powers.

By and large, there is no "clean division" between states and federal government in the Constitution we have. Of course the Constitution guarantees a role for the states. Some powers are given exclusively to the federal government, and cannot be shared, such as the power to conduct war and negotiate peace, regulate currency and emit bills of credit, or set the discipline of the armed forces and state militias. Some powers are given to the states, and can't be taken by the federal government, including the power to designate state capitals, adopt state constitutions, draw the political boundaries of cities and towns, choose the officers of their state militias. Many powers are explicitly denied to the states -- for example, they can't even negotiate agreements among themselves without Congress's permission. Some are expressly denied to the federal government -- the power to set criminal venue in states where the crimes did not occur, for example.

The rest -- the powers that aren't given explicitly and exclusively to one government or the other -- belong to the people. The people are the holders of "rights"; they are the holders of "sovereignty." And, being sovereign, the people can insist that powers be shared by the states and the federal government, relying on the political process, and on their own supremacy as expressed in presidential and congressional election, to police the boundaries.

The Constitution we have offers no pretext for reactionary judges, like the Hammer v. Dagenhart Court, to step in and say that the federal government may not use its textual power over commerce to stop the exploitation of children in factories, mills, and mines (or, for that matter, to regulate the interstate market in health insurance). If members of Congress want to be "a little bit harsh" and protect exploiters of children, they have to say so, and take the heat from their real bosses--the people.

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